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[Prefatory Note: The dysfunctionality of the Gulf Crisis, pitting a coalition of four countries, Saudi Arabia, UAE, Bahrain, and Egypt against tiny Qatar, is emblematic of the descent into multi-dimensional chaos, conflict, and coercion that afflicts much of the Middle East. Qatar may be tiny, but it is wealthy and has chosen for itself a somewhat independent path, and for this reason has experienced the wrath of the more reactionary forces operative in the region and world. At the center of the dysfunction is the manipulation of the political discourse on terrorism, pointing accusing fingers without any regard for evidence or fabrication.

My text below seeks to put forward a dispassionate and objective analysis from the perspective of international law and diplomatic protocol of the so-called ’13 Demands’ (appended as an annex) directed at Qatar by the coalition almost a year ago. Despite having its own internal problems and challenges, Qatar has provided a relatively open political space compared to the rest of the region, encouraging media and educational diversity, giving asylum to political exiles and refugees, and showing sympathy, although inconsistently, for the aspirations of the Arab masses. This makes the Gulf Crisis a further setback for those seeking regional empowerment, sustainable development, and social, political, economic, cultural, and climate justice for the region as a whole. The intrusion of Trumpian geopolitics, especially the escalating confrontation with Iran, aggravates the disorders and dangers posed by the conflict patterns and irresponsible allegations with regard to terrorism now playing out in the region. I believe that by reflecting on the unreasonableness of the 13 Demands of the coalition it is possible to understand better the maladies affecting the entire region.]

A Normative Evaluation of the Gulf Crisis

The Gulf Crisis erupted on June 5 2017 when a Saudi Arabian led coalition of

four countries broke diplomatic relations with Qatar and Saudi Arabia closed its sole land border to Saudi Arabia and refused to allow their national air spaces to be used by flights from or to Qatar.[1] The imposition of a blockade is generally regarded as an act of war in contemporary international law, which is also a violation of the UN Charter’s prohibition of recourse to international force except in cases of self-defense against a prior armed attack. (UN Charter, Article 2(4), 51) These unilateral moves were then given a more concrete form on June 22 in the shape of ’13 Demands’ that instructed Qatar to comply within ten days, or face indefinite isolation. There followed failed attempts by Kuwait to mediate. From the start the leadership of Qatar expressed its immediate willingness for dialogue as the correct way to resolve the Gulf Crisis; as well, the United States and several principal countries in Europe urged a diplomatic resolution of the dispute as being in the interest of the Gulf region and the Middle East generally.

In this paper the 13 Demands of the Saudi coalition (Saudi Arabia, United Arab Emirates, Bahrain, and Egypt) are considered from the perspective of international law (including the UN Charter), the protocols of international diplomacy, and the framework of cooperation associated with the GCC framework. The paper analyzes these normative dimensions of international relations with special attention to the specific context associated with Qatar and the Coalition. This analysis is supplemented by a consideration of whether there are grounds for making some adjustments in Qatari policy based on its affinities with other states that are member of the GCC, including a large number of shared policy goals. From the outset, it seemed as if all sides in the conflict, at least outwardly, favored a prompt resolution of the crisis, but how this could be achieved given the sovereignty concerns of Qatar remains elusive 8 months later. The formidable obstacles to normalization are evident from the nature of the 13 demands of the Coalition and Qatar’s unshakable resolve to defend its independence and uphold its sovereign rights.

Attention is also given as to whether Coalition grievances have some policy merit if treated as a matter of ‘reasonableness’ within the GCC framework even if the 13 demands do not make the case that Qatar should change its behavior because its policies have been violating international law. Are there ways for the government of Qatar to alter its policies to satisfy the Coalition without sacrificing its fundamental identity as a fully sovereign state and member of the United Nations in good standing? In this regard, the internal values and expectations of the GCC with respect to the degree to which diversity of public order internal to the state is permissible and the extent to which domestic and foreign policy of a GCC member state needs to avoid causing impacts on the security of other GCC members are relevant considerations.

The 2014 Gulf Crisis

It seems important to realize that tensions between GCC members and Qatar have been present since the time of the GCC’s formation, but for reasons of internal cohesion these disagreements were for years kept below the surface. However, as these underlying tensions greatly intensified after the Arab Spring of 2011 it became increasingly difficult to maintain confidentiality as to policy differences. These differences climaxed as a result of the regional growth of influence of the Muslim Brotherhood, which was regarded as a serious threat by the Coalition states while being viewed rather more favorably by Qatar. It was hardly a secret that this rise of the Brotherhood was perceived as a hostile and potentially dangerous development by several GCC countries, and especially UAE and Saudi Arabia, as well as Bahrain.

In this regard, Qatar’s sympathy for the Arab uprisings and its relatively positive relationship with the Muslim Brotherhood struck a raw nerve in relations within the GCC, raising serious questions about the workability of the GCC as a collaborative alliance in the future. This discord broke into the open in March 2014 when Bahrain, Saudi Arabia, and UAE withdrew their ambassadors from Doha in an obviously coordinated move. In response, Qatar sought dialogue and reconciliation, and decided to leave its ambassadors in place rather than engage in reciprocal withdrawal. The Emir, Sheik Tamim, took a diplomatic initiative by seeking reconciliation in the course of several meetings with King Abdullah in Riyadh.

The Qatar position in response was articulated at the time by the then Minister of Foreign Affairs, Khaled bin Mohammed Al-Attiyah, who stressed early in the 2014 crisis that Qatar would not compromise with respect to its insistence on ‘independence’ for itself and other GCC members and in relation to showing support for peoples in the region seeking ‘self-determination, justice, and freedom.’ [Interview, Al-Arabiya, 5 March 2014] Such a position, especially after the MB did better than expected in elections, especially in Egypt, sharpened the tensions, with the Saudi-led Gulf monarchies being determined to do all in their power to promote counter-revolution in the region to the extent of criminalizing the MB as a terrorist organization. Qatar’s refusal to go along with such aggressive moves prompted the rupture in relations, but only temporarily.

With the encouragement of the non-aligned GCC members, Kuwait and Oman, there took place a GCC Summit in November 2014 that agreed to the Riyadh Supplemental Agreement that reaffirmed the GCC norms of non-interference and avoidance of behavior that poses a threat to the political stability of other members. GCC diplomatic relations were restored, and this first Gulf Crisis unrealistically viewed as having been resolved. The GCC was widely praised for surmounting its internal differences, and recognizing the strength of its fraternal bonds. Some optimistic commentators viewed this closing of ranks as a sign that the GCC had attained ‘maturity,’ but in retrospect the conflict was not overcome or compromised, but swept under the rug for the moment. The Riyadh Supplemental Agreement, although not a public document, apparently contains contradictory principles that allow both sides to find support for their positions. The Coalition can take heart from the commitment of participating governments not to adopt policies and engage in behavior that threatens other GCC members. Qatar can feel vindicated by the recognition and affirmation of the sovereign rights of GCC members.

Despite the formal resolution of the 2014 crisis it was evident even at the time that UAE, in particular, continued to be deeply opposed to what it regarded as Qatar’s positive relations with and public support for the MB. It was this rift as filtered through later developments, especially the sectarian and regional geopolitical opposition of the Coalition to Iran even in the face of difference of policy nuance among Coaltion member. The Coalition is not monolithic.. Nevertheless, certain tendencies are evident. Post-2014 Iran replaced the MB as the main adversary of the Coalition, while Qatar for entirely different reasons found itself in an economic and political position that demanded a level of cooperation with Iran, centered on the world’s largest natural gas field being shared by the two countries.

The Onset of the 2017 Crisis

While the American president, Donald Trump, was in Saudi Arabia for a formal state visit in May 2017, there were strong accusations directed at Qatar as funder and supporter of terrorism, not doing its part in the struggle against terrorism in the Middle East, views that were blandly endorsed by Trump without any plausible grounding in evidence. Following Trump’s departure, the Coalition hostile to Qatar was formed with the same GCC alignment of Bahrain, Saudi Arabia, and the UAE as antagonists and Kuwait and Oman as non-aligned. A major difference from 2014 was that the GCC initiative this time included the participation of Sisi’s Egypt, the new leader who had in 2013 overthrown the MB elected government and

who received major economic assistance from GCC governments.

On 6 June 2017 the anti-Qatar coalition announced intention to confront Qatar because of alleged support of terrorism throughout the Middle East. This declaration included the announcement that diplomatic relations would be suspended and Qatar’s land border with Saudi Arabia would be closed, air space blocked; in addition, 19,000 Qatari individuals given two weeks to leave Coalition countries, and 11,300 Coalitional nationals living in Qatar were ordered to return home or face serious penalties, an unusual example of ‘forced repatriation.’ Unlike 2014, Qatar withdrew its ambassadors from the three coalition members plus Egypt.

These actions met with strong Qatari objections, although coupled with an offer of dialogue and advocacy of a political solution. Qatar’s initiative did not lead to a favorable response from the Coalition membership. In fact, the Gulf Crisis was actually aggravated when the Coalition tabled its 13 Demands with an ultimatum demanding compliance within ten days.

It should be pointed out that this unilateralism by the Coalition, especially on the part of countries with many shared interests, common undertakings, and overlapping relationships, is directly opposed to the letter and spirit of Article 2(3) of the United Nations Charter: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” Here, the Coalition made no effort whatsoever to resolve the crisis peacefully, either by way of a call for diplomacy prior to taking coercive steps or through agreeing to mediation in the immediate aftermath of the crisis. Instead, these Coalition’s coercive moves caused harm to both the public interest of the state of Qatar and to private citizens of Qatar whose professional and personal lives were disrupted in serious ways that constituted violations of international human rights standards.

’13 Demands’ of Bahrain, Saudi Arabia, and UAE

The explicit focus of the 2017 crisis shifted its main attention to the campaign against terrorism, with a background allegation that Qatar had been funding and supporting terrorism in the Arab world for many years, and was thus an outlier in the GCC context. There were two dubious major assumptions accompanying the Coalition demands: (1) that the MB is correctly identified as a ‘terrorist organization;’ (2) that the members of the GCC Coalition, despite their own extensive funding of radical madrassas throughout the Muslim world, were less guilty than Qatar, of nurturing the terrorist threat in the Gulf and throughout the Middle East. In this respect, playing ‘the terrorist card’ by the Coalition obscured the extent to which the real explanation of the crisis had little to do with suppressing terrorism and much to do with confronting Iran, and thus disciplining Qatar in reaction to its disproportionate influence in the region, and controlling the terrorist discourse in a manner that corresponded with their strategy of considering as ‘terrorist’ any political movement that challenged in any way the legitimacy of Islamic dynastic rule. It is highly relevant that Qatar also is governed by dynastic monarchy, but in a manner that is far more consonant with international law than are its Coalition neighbors. Qatar is also more tolerant of diversity and dissent internally than other Coaltion members, but faces serious human rights challenges with respect to its non-Qatari residents who comprise the majority of the population.

The 13 Demands are set forth in a document released on June 6, 2017, giving a formal character to the Coalition’s disregard of international law and diplomatic protocol in its undertaking to control Qatar’s domestic and foreign policy. These demands can be examined from the perspective of international law and international human rights standards. It should be observed that the 13 demands are not presented in a reasoned way or with any attempt to be reconciled with either international law or diplomatic relations between sovereign states, especially here, where the relations are especially close given the juridical and practical collaborative activities of members of the GCC. As earlier comments make clear, there were clear tensions associated with Qatar’s perceived support for the MB, especially in Egypt, and its relative openness on issues of freedom of expression, which included criticism of Coalition countries.

What follows is brief commentary from the perspectives of international law and international diplomacy on each of the 13 demands:

Curb diplomatic ties with Iranand close its diplomatic missions there. Expel members of Iran’s Revolutionary Guards and cut off any joint military cooperation with Iran. Only trade and commerce with Iran that complies with US and international sanctions will be permitted.

This primary demand may be the most important political item on the list of 13, but it has no foundation in international law. Qatar as a sovereign state has complete freedom to establish whatever relationship it chooses to have with Iran.

From a diplomatic perspective this ‘demand’ can be interpreted as a request from the closely aligned states that constitute the Coalition, but if so construed, it is an occasion for discussion, and policy coordination, not coercive threats and actions.

As for the obligations associated with sanctions, there is no legal reason for Qatar to implement U.S. sanctions imposed on Iran. Qatar does have a limited obligation to uphold UN sanctions, but the Coalition has no standing, except possibly within a UN setting, to raise such an issue.

Formulating this request in the form of a ‘demand’ seems an inappropriate intrusion on a matter within the sovereign discretion of Qatar. As with the first demand, the call for severance of ties with the MB and Hezbollah are of great importance to the Coalition, but this is a political matter to be discussed either within the GCC or some other forum. For the Islamic State and al-Qaida there is little disagreement about there character as a ‘terrorist organization,’ but for the MB and Hezbollah the assessment is more contested, and thus a demand that they be “formally declared” as a terrorist organization is inappropriate from perspectives of international law and international diplomacy.

Shut down al-Jazeeraand its affiliate stations.

Such a demand is in flagrant violation of the right of freedom of expression as embodied in authoritative international law treaties and part of customary international law relating to human rights. In effect, Qatar is put under pressure to commit such a violation. It is especially objectionable as al-Jazeera and its affiliates conform to high standards of journalistic professionalism, and do not open their media outlets to hostile propaganda or hate speech. Demand (3) contravenes Articles 18 & 19 of the Universal Declaration of Human Rights.

Shut down news outlets that Qatar funds, directly and indirectly, including Arabi21, Rassd, Al-Araby Al-Jadeed and Middle East Eye.

The same legal rationale applies as set forth in response to Demand (3). Further, here there is an attempted interference with Qatar’s support for high quality media elsewhere that is a public good, giving the peoples of the Middle East and elsewhere exposure to alternative viewpoints on the main public issues of the day.

Immediately terminate the Turkish military presencein Qatar and end any joint military cooperation with Turkey inside Qatar.

This demand attempt to intervene in the internal security arrangements of Qatar, and as such challenges its sovereign rights on a matter of prime national concern. It is an attempted violation of the central norms of peaceful relations, as set forth in the influential Declaration on Principles of International Law Concerning Friendly Relation and Co-Operation Among States in Accordance with the Charter of the United Nations, GA Resolution 2625, 1970, especially principles b-e, stressing sovereignty and non-intervention.

If Turkey was somehow posing an existential threat to Coalition countries, then a diplomatic appeal to a fellow GCC member might be a reasonable initiative. As matters now stand Turkey has a diplomatic presence in all Coalition members, except Egypt where relations are kept at the level of Charges d’Affiares. There is some friction between Turkey and the UAE on various issues, and so tensions exist, including in relation to resolving the Gulf Crisis. On its face, Demand (5) is entirely unreasonable from both the perspective of international law and normal diplomacy.

Stop all means of funding for individuals, groups or organisations that have been designated as terroristsby Saudi Arabia, the UAE, Egypt, Bahrain, the US and other countries.

This may be the most extraordinarily inappropriate demand of all for two reasons. First, it removes from Qatar’s discretion the designation of “individuals, groups or organisations” that are deemed to be “terrorists.” This is an unacceptable intrusion on Qatar’s sovereign rights. And by including the United States it moves the source of Coalition grievance outside the framework of both the GCC and the Coalition. Egypt is also not a member of the GCC but at least a member of the Coalition.

It seems obvious that the effort here is to brand as terrorists those individuals and organizations associated with the MB and Hezbollah as directly targeted in Demand (2).

Hand over “terrorist figures”and wanted individuals from Saudi Arabia, the UAE, Egypt and Bahrain to their countries of origin. Freeze their assets, and provide any desired information about their residency, movements and finances.

Demand (7) suffers from the same deficiencies as (6) plus the added indignity of such vague and inflammatory designations as “‘terrorist figures’ and ‘wanted individuals.’” Such a demand could be formulated in acceptable diplomatic language as pertaining to those who had been convicted of crimes by courts in Coalition, and were subject to extradition following formal requests made to the Government of Qatar. Extradition would not be available if the person requested was convicted of ‘political crimes’ or if the trial process was not in accord with international standards, or if no extradition treaty or practice exists.

Again as in Demand (7), the demanded action is a clear interference with core sovereign rights pertaining to the grant and withdrawal of citizenship of the State of Qatar, and as such an attempted violation of the norm prohibiting intervention. It seeks such a crude disregard of Qatari sovereignty as to constitute a grave diplomatic insult, which is a breach of protocol, especially inappropriate for countries supposedly collaborating on the basis of shared interests and common values within the GCC framework.

Stop all contacts with the political opposition in Saudi Arabia, the UAE, Egypt and Bahrain. Hand over all files detailing Qatar’s prior contacts with and support for those opposition groups.

As with Demand (8) to make such a demand public is to breach diplomatic protocol, as well as to express in this context of threat and insult issues that are within the sphere of Qatar’s internal security policies and practices. If the context were different, it might be that Coalition could make confidential requests to Doha institutions and officials for cooperation with respect to specific individuals deemed dangerous to one or more GCC member states, and even to Egypt. It might also be observed that reliable reports by the BBC and elsewhere that the UAE was holding a Qatari prince captive as a possible replacement for the Emir of Qatar. Such reports make this demand particularly objectionable and hypocritical.

Pay reparations and compensation for loss of life and other, financial losses caused by Qatar’s policiesin recent years. The sum will be determined in coordination with Qatar.

Demand (10) is on its face vague and unacceptable from the perspectives of international law and diplomacy. It is formulated as if “Qatar’s policies in recent yIears” can be assumed to be wrong and unlawful to such an extent as to justify a demand for “reparations and compensation.” This is not only an unlawful demand, it is irresponsibly asserted in a manner that any government would find to be insulting and totally unacceptable.

Consent to monthly audits for the first yearafter agreeing to the demands, then once per quarter during the second year. For the following 10 years, Qatar would be monitored annually for compliance.

As with the prior demand, Demand (11) seems such a departure from the canons of public diplomacy as to be inserted as a deliberate provocation on a fundamental matter of Qatar sovereign rights. In effect, Demand (11) is seeking a humiliating public surrender of Qatar’s sovereignty, and a basic repudiation of the most fundamental standard of international diplomacy—the equality of sovereign states. Under no conditions, short of terms imposed on a defeated government after a war can such a requirement of “monthly audits” for a period of ten years be deemed reasonable or acceptable.

Align itself with the other Gulf and Arab countries militarily, politically, socially and economically, as well as on economic matters, in line with an agreement reached with Saudi Arabia in 2014.

Unlike other demands, especially Demands (9)-(11), Demand (12) on its face seems relatively unobjectionable, and can be understood as a mere call for greater collaboration. It can also be read as unacceptably putting Qatar in a subordinate position of ‘aligning itself’ on policy matters with Coalition and unspecified other “Arab countries” rather than seeking policy coordination on the basis of sovereign equality and mutual respect. To the extent that it uses coercive language, it is diplomatically unacceptable.

Agree to all the demands within 10 days Agree to all the demands within 10 daysof it being submitted to Qatar, or the list becomes invalid.

Such an ultimatum is an unlawful challenge to the sovereign rights of Qatar and a serious breach of diplomatic protocol in relations between sovereign states, accentuated by common membership in the GCC. There is no rationale or justification given for this kind of hegemonic language or attempted control of Qatar’s lawful and discretionary policies and practices. Although rendered invalid by its language if not accepted within ten days, its renewed assertion by the Coalition makes Demand (13) incoherent, and of ambiguous relevance to efforts to resolve the Gulf Crisis.

Conclusion:

The analysis and appraisal of the 13 Demands from the perspective of international law and diplomatic protocol reaches the conclusion that not one of the demands is reasonable, in accord with respect for the sovereignty of Qatar, and respectful of the proper canons of diplomacy governing relations among sovereign states that are based on equality and mutual respect. In summary, the 13 Demands are incompatible with the principles set forth in GA Res. 2625, referenced above, that sets forth the principles for lawful and friendly relations among sovereign states, as well as with Article 2 of the UN Charter. Take as a whole, the demands seem so incompatible with respect for Qatar as a sovereign state as to appear intended to isolate the country or even create an atmosphere that prepared the way for regime-changing coup. Such a scenario, even if not executed, is incompatible with international law and the norms of friendly relations among states, especially, as here, among aligned states.

It might be useful at some point to make public use of this point-by- point analysis of the 13 Demands to underscore Qatar’s strong and unassailable position in refusing to accede to these demands. The fact that the Coalition has recently affirmed their insistence that Qatar accept the 13 Demands as the precondition for resolving the Gulf Crisis suggests the importance of a convincing set of explanations for Qatar’s refusal to respond favorable to the 13 Demands either singly or collectively.

This seeming effort to compel Qatar to except external pressures, including a demand of compliance with U.S. sanctions imposed on Iran sets a precedent that could work against the sovereignty of other GCC members in the future. The diplomatic posture with respect to Qatar seems t0 assert a collective right of GCC members to intervene in internal affairs of another member to a far greater extent that present supernational actors have ever in the past claimed.

It seems doubtful that the 13 Demands have any constructive role to play in a diplomacy of reconciliation among Gulf countries. Indeed, it would seem that a necessary first step toward the initiation of a diplomacy of reconciliation would be for the Coalition to abandon any further reference to the 13 Demands as possessing any relevance whatsoever in shaping future relations between Qatar and the GCC and Coalition.

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Annex: The 13 Demands

Curb diplomatic ties with Iranand close its diplomatic missions there. Expel members of Iran’s Revolutionary Guards and cut off any joint military cooperation with Iran. Only trade and commerce with Iran that complies with US and international sanctions will be permitted.

Shut down news outlets that Qatar funds, directly and indirectly, including Arabi21, Rassd, Al-Araby Al-Jadeed and Middle East Eye.

Immediately terminate the Turkish military presencein Qatar and end any joint military cooperation with Turkey inside Qatar.

Stop all means of funding for individuals, groups or organisations that have been designated as terroristsby Saudi Arabia, the UAE, Egypt, Bahrain, the US and other countries.

Hand over “terrorist figures”and wanted individuals from Saudi Arabia, the UAE, Egypt and Bahrain to their countries of origin. Freeze their assets, and provide any desired information about their residency, movements and finances.

Book Launch: Revisiting the Vietnam War: The Views and Interpretations of Richard Falk, edited by Stefan Andersson, Cambridge University Press, 2017.

Why the Legal and Political Debate on the Vietnam War Still Matters

[Prefatory Note: There has been recently a revival of interest in the Vietnam War, perhaps most notably as a result of the quite extraordinary Ken Burns & Lynn Novick’s ten-part, eighteen hour documentary film as aired on PBS, which although somewhat ideologically slanted toward an American audience has much illuminating footage, especially bearing on various Vietnamese perceptions of the war experience. I would also call attention to a series of articles by Matthew Stevenson describing his recent visit to Vietnam, which combines acute journalistic observation with impressive commentary on the war experience and the problematics of contemporary Vietnam. Stevenson’s valuable contributions are being serially published in Counterpunch, so far two of a promised eight.

I visited Vietnam in November of 2017 for ten days, and met with some Vietnamese officials I had known during the war, as well as with journalists and friends, seeking, especially, to understand whether the present generally harsh criticisms of suppression of dissent and authoritarian governance were justified, and came to mixed conclusions.

On human rights my suspicions of Western bias seemed entirely vindicated, that is, by reducing the effective scope of international human rights criteria to civil and political rights, and completely ignoring successes or failures in social and economic rights. Vietnam is illustrative of this pattern of claiming the high moral ground for the West in the post-colonial era by pointing to their human rights failings, completely overlooking Vietnam’s remarkable achievements of poverty reduction resulting from the pursuit of a needs based development strategy up to this point. With tens of millions of Americans and Europeans enduring varying degrees of material deprivation relating to food, health care, shelter, and jobs, their boastfulness about human rights has an increasingly hollow, even macabre, sound. Indeed, given the wealth of these societies and the scandalous disparities between rich and poor, it would be more reasonable to single out these countries for censure as notable laggards when it comes to human rights provided that economic and social rights are included in the mix. I am not minimizing the importance of civil and political rights, but for the majority of the population these rights pale in day to day significance if compared to failings in the domain of economic and social rights.

These comments introduce an online launch my own book, Revisiting the Vietnam War: The Views and Interpretations of Richard Falk, published by Cambridge University Press at the end of 2017. In fact, it is not really my book, but as much or more the work of my friend and colleague, Stefan Andersson who edited the text, supervised the production process, arranged for the blurbs, and above all, overcame my own lethargy. I add the newly written preface that I contributed to this collection of my past writings. After the post the back cover containing blurbs is shamelessly included to induce readers to rush to order the book from Amazon or your bookseller of choice.

The preface essentially expresses my view that the wrong lessons have been learned by the United States from its failure in Vietnam, and thus the cycle of regressive violence continues to torment vulnerable peoples in the non-Western world. This geopolitical and normative learning disability is at its core an effort to particularize the Vietnam experience, and allowing policy planners and think tank analysts to propose a series of tactical adjustments that will ensure that future Vietnams result in successful outcomes. Such a (mis) reading of Vietnam has contributed to the more recent counterinsurgency failures as in Afghanistan and Iraq, confirming the my central assessment that the real lessons of post-colonial world order are resisted because their proper interpretation would substantially discredit American reliance on global militarism as the foundation of its grand strategy around the world. Perhaps, most troubling to me, especially in light of this commentary on the evasion of international law throughout the Vietnam War, is the new more drastic set of evasions of international law that have followed ‘the war on terror’ initiated in response to the 9/11 attacks on the World Trade Center and the Pentagon.

In any event, my book, as well as the current flurry of interest in Vietnam, seeks to encourage citizens pilgrims throughout the world to remember Vietnam as a culmination of the anti-colonial wars and as the basis for a revisionist view of the agency of hard power in the 21st century. I ask indulgence for my miserable attempt to add a photo of the cover below, which is an injustice to the talented Canadian artist, Julianne Allmand. who created it under the title, ‘Sticky Fire.’ I am painfully aware that I could have done far better as a photographer had I entered the digital age twenty years earlier.]

The Harmful Legacy of Lawlessness in Vietnam

More than 40 years after the defeat of the United States in Vietnam the central lessons of that war remain unlearned. Even worse, the mistakes made and crimes committed in Vietnam have been repeated at great human, material, and strategic cost in several subsequent national settings. The central unlearned lesson in Vietnam is that the collapse of the European colonial order fundamentally changed the effective balance of power in a variety of North/South conflict situations that reduce the agency of military superiority in a variety of ways.[1]

What makes this change elusive is that it reflected developments that fall outside the policy parameters influential in the leadership circles of most governments for a cluster of reasons. Most fundamentally, governmental geopolitical calculations relating to world order continue to be based on attributing a decisive causal influence to relative military capabilities, an understanding at the core of ‘realist’ thinking and behavior. Within this paradigm military superiority is regarded as the main driver of conflict resolution, and the winners in wars are thought to reflect the advantages of hard power differentials. The efficiency and rewards of military conquest in the colonial era vindicated this kind of realist thinking. Europe with its dominant military technology was able to control the political life and exploit the resources of populous countries throughout Asia, Africa, and Latin America with a minimum of expenditure and casualties, encountering manageable resistance, while reaping the rewards of empire. The outcomes of World War I and II further vindicated the wider orbit of the realist way of thinking and acting, with military superiority based on technological innovation, quantitative measures, and doctrinal adaptation to new circumstances of conflict receiving most of the credit for achieving political victories.

The Vietnam War was a dramatic and radical challenge to the realist consensus on how the world works, continuing a pattern already evident in nationalist victories in several earlier colonial wars, which were won against earlier expectations by anti-colonial forces. Despite these illuminating results of colonial wars after World War II the American defeat in Vietnam came as a shock. The candid acknowledgement of this defeat has been twisted out of recognition to this day by the interpretive spins placed upon the Vietnam experience by the American political establishment. The main motive of such partisan thinking was to avoid discrediting reliance on military power in the conduct of American foreign policy and to overcome political reluctance in the American public to fund high levels of military spending. Until the deceptive military victory in the First Gulf War of 1991, the policy community in the United States bemoaned what it described as ‘the Vietnam Syndrome,’ which was a shorthand designation for the supposedly unfortunate antipathy among the American citizenry to uses of hard power by the United States to uphold American geopolitical primacy throughout the world.

The quick and decisive desert victory against the imprudently exposed Iraqi armed forces massed on the desert frontier compelled Iraq to withdraw from Kuwait, which it had recently conquered and annexed. This result of war making was construed to vindicate and thus restore realist confidence in American war making as a crucial instrument of world order. On closer examination, this enthusiasm for war generated by the almost costless victory in the desert terrain of the First Gulf War involved a category mistake on the part of American leaders, or so it seems. It confused the continuing relevance of military capabilities in conventional war encounters between sovereign states with the declining utility of military supremacy in wars of intervention or counterinsurgency wars, that is, violent conflicts between a foreign adversary and a national resistance movement. It should have been clear to expert commentators that the Vietnam War was an example of a massive foreign intervention being defeated by a skillfully mobilized and efficiently led national movement, and in this respect totally different from First Gulf War with respect to terrain of battle and what was at stake politically for the two sides.

Comprehending why the United States mishandled not only the war in Vietnam but misconstrued its result, is associated with earlier unlearned lessons that involved a misinterpretation of the lost colonial wars, most relevantly, the French defeat in the Indochina War despite the long and deep French presence. In retrospect it was evident to all that the French had failed to grasp the extraordinary resolve that informed the nationalist motivations of the Vietnamese and more than compensated for their military weaknesses, empowering Vietnamese society to endure severe and prolonged suffering to achieve eventual political independence and national sovereignty, and the accompanying collective sense of national pride. Under the inspirational leadership of Gandhi, India achieved independence and recovered sovereignty through a militant nonviolent struggle that by heroic perseverance overcame the grim and unscrupulous determination of 10 Downing Street to retain ‘the jewel’ in the crown of the British Empire whatever the costs of doing so might turn out to be. Whether articulated as the rise of ‘soft power’ or explained by reference to the imbalance between imperial commitments and nationalist perseverance and local knowledge, the story line is the same. The intervening foreign or alien power has lower stakes in such struggles than does an indigenous population effectively mobilized as a movement of national resistance. Colonial powers were slow to recognize that moral and political resistance to their presence was growing more formidable as the ideology of nationalism spread around the world. Resistance become more credible, and withstood a series of prodigious colonial efforts to retain control over colonized peoples, but as these struggles proceeded the former colonial overlords were at varying stages forced to recalculate their interests, and mostly decided that it was better to give up their colonial claims and withdraw militarily than further commit to what had become a lost cause.

We can also interpret this historical turn as reflecting the disparities between the political will of a people fighting for self-determination and a foreign government linked to private sector interests that are trying to retain the benefits of control over a distant country for the sake of resources, prestige, settler pressures, geopolitical rivalry, or a combination of these factors. From the end of World War II onwards, this imbalance of political wills seems to offer the best predictor of the outcome of colonial wars or military interventions in counterinsurgency struggles. In this regard, the French defeat in Indochina should have delivered a cautionary message to the Americans. In fairness, it should be pointed out that the French themselves didn’t learn much from their Indochina defeat, going on to wage and lose an even more damaging colonial war in Algeria eight years later. The noted French journalist, Bernard Fall tried hard to warn the Americans of the great difficulty of achieving a reversal of the French experience in its Indochina War.[2] The French had higher than normal stakes in Indochina. It was to a significant extent ‘a settler colonial’ state, meaning that the French human and cultural presence had sunk deep roots that raised the stakes of withdrawal for France, an experience repeated on a larger scale in Algeria, but producing the same outcome but only after inflicting massive suffering on the native population. The American intervention in Vietnam was primarily motivated by the ideological rivalry of the Cold War, and did not have the high level of material and human interests that led the French to fight so hard to crush the Vietnamese and Algerian challenges to their colonial rule.

The ‘settler colonial’ situation of Algeria, and even more so, South Africa and Israel, complicate the overall analysis. In the event of settler control of the colonial state, the issue of foreign or alien rule becomes blurred, and the question of the identity of ‘the nation’ is itself contested in ways that are very different from the situation of a colonial administration governing on behalf of a European home country or metropole without any pretension of belonging to the occupied nation as if it was one’s own. Each situation has its own originality. For Jews in Israel who claim a biblical and ancestral mandate, and lacking a default homeland option in a distinct territory possess an intense political will to preserve their control of Palestine. The indigenous Arab population of Palestine also has a near absolute will to resist dispossession from their native lands, and are unwelcome elsewhere in the region, having experienced vulnerability to changes in local circumstances and discrimination in neighboring Arab countries. For this reason, as reinforced by the special relationship of Israel with the United States, the Palestinians are waging an uphill battle in which their supposedly inalienable rights of self-determination have been for decades squeezed almost beyond recognition.[3]

Against this background, American reasoning about the Vietnam War displayed what later would be called ‘the arrogance of power,’ that is, the blind faith in the efficacy of its hard power superiority in conflict situations, whether nuclear, conventional, or counterinsurgent.[4] The United States emerged from World War II as the dominant geopolitical actor in the world, having turned the tide of battle against Germany and Japan, as well as developing and using its monopoly over the ultimate weapon against Japan at the end the Pacific war by dropping atomic bombs on Japanese cities. If Germany and Japan could not resist the American juggernaut, who could expect a country that Lyndon Johnson and Henry Kissinger called ‘a fourth rate Asian power’ to resist and repel the American military machine? In the end, it was the greater Vietnamese will to persevere and their cultural resilience that overcame American firepower, as well as the unsurpassed anti-colonial legitimacy of the Vietnamese struggle, which contributed to the rise of a robust worldwide anti-war movement of solidarity, including within the United States. By the mid-1960s it had become increasingly evident that the side that won the legitimacy war would prevail politically even if compelled to endure devastating losses on the battlefield and throughout the country.[5]

The most serious blind spot of the realist paradigm is its inability to take account of its weaknesses with respect to legitimacy as a dimension of political life. This became manifest in the Vietnam setting. The American claims with respect to its presence in Vietnam were essentially ideological and geopolitical, the importance of avoiding the spread of Communism and thus containing the expansionist challenge being allegedly mounted by the Soviet Union and China. In opposition to such reasoning were the historically more influential claims in support of nationalism and the right of self-determination, especially in contexts involving struggles of a colonized people against their colonial masters. Vietnamese legitimacy claims with respect to the United States were further validated by the flagrant disregard of international law constraints and the impact of this disregard on world public opinion, which contributed to mounting American domestic opposition to continuing the war.[6]

This collection of essays written in support of the relevance of international law to the shaping of American foreign policy during the Vietnam Era remains instructive as the 21st century unfolds. The United States has continued to pursue a dubious diplomacy punctuated by military interventions in distant countries, fighting a series of losing counterinsurgency wars after Vietnam, remaining unresponsive to the constraints on recourse to war and war fighting embodied in international law and the UN Charter. The realist consensus, regarding law and morality as dispensable and marginal impediments to sustaining geopolitical effectiveness in world politics, continues to govern the policymaking entourage that shapes war/peace decisions, and has produced a string of costly defeats (especially, Afghanistan and Iraq) as well as badly damaged America’s reputation as a global leader, which in the end depends far more on its legitimacy credentials than on its battlefield prowess, but suffers most when it both loses on the battlefield and should lose if law and morality are taken into account. It is the contention of these essays that adherence to international law is vital for world peace and in the national interest of all countries on all occasions, and this includes the United States.

So-called ‘American exceptionalism’ operates as a free pass in Washington to disregard the rules applicable to other sovereign states, but as the recent history of international conflicts reveal, it does no favors to the United States or its people, although it may further the careers of diplomats and enhance the profits of special interests. Further, it seems evident that the continuing exercise of discretion to ignore legal constraints on the use of international force will be accompanied by repeated disappointments in the conduct of foreign policy for this most mighty country in all of world history and will also continue to erode its legitimacy credentials.

The 9/11 attacks gave the United States a chance to start over, undertaking a response to mega-terrorism within the framework of the rule of law that would have been a great contribution to building up the global rule of law and charting a new path toward sustainable global governance. Instead, a ‘war on terror’ was immediately launched that amounted to a declaration of permanent warfare, undermining the authority of international law and the UN, and perversely leading to the spread and intensification of terrorist activities. The defaming scandals of Guantanamo, Abu Ghraib, and ‘enhanced interrogation’ together with the failure to prosecute those responsible for authorizing and perpetrating ‘torture’ during the presidency of George W. Bush confirm the deeply entrenched refusal of the U.S. Government to self-enforce minimum standards of international criminal accountability, and its obvious endorsement of a flawed international criminal law regime that currently rests on the major premise of geopolitical impunity as interpreted by way of American exceptionalism. The emergence of ISIS, as had been prefigured in Afghanistan by the rise of Al Qaeda and occasioned by American occupation policies in Iraq, is the ultimate blowback experience betokening an erroneous hard power opportunism in Washington misleadingly chosen as the best approach to national and global security.

The essays in the volume also explore the failure to abide by the experience after World War II, which included imposing criminal accountability on those surviving German and Japanese military and political leaders responsible for the commission of state crime centering on the recourse to and prosecution of aggressive warfare, as well as the mass atrocities epitomized by the death camps. By now it is confirmed that the Nuremberg and Tokyo Judgments although respectful of defendants’ rights and substantively justified were in a larger sense ‘victors’ justice’ by exempting the crimes of the winners from legal scrutiny.[7] The principles of law applied to the losers at Nuremberg and Tokyo were never intended to be applied to the winners, or to those who would after 1945 control the geopolitical dimensions of world politics and dominate its various episodes of warfare.[8] Criminal accountability in relation to warfare was cynically applied to the losers and those in subordinate positions of state power throughout the world, and still is.

Into this normative vacuum stepped the rising activism of civil society, and this became initially disclosed as part of the rising opposition to the Vietnam War. The great British philosopher and political activist, Bertrand Russell, convened a tribunal of conscience composed of moral and cultural authority figures with international stature to gather the best evidence available of American criminality in the ongoing Vietnam War. This bold initative filled the institutional vacuum created by the lack of political will among governments or at the UN to carry forward the Nuremberg impulse with respect to accountability of individuals.[9] In effect, the project of imposing criminal accountability on the strong has become an exclusive undertaking of global civil society, although with some collaboration from moderate governments that do not enjoy the status of being geopolitical actors. It was this transnational collaboration between governments and civil society actors that generated the momentum leading to the unexpected establishment of the International Criminal Court in 2002, but as yet this new institution has given little indication that it possesses the capacity and even the mandate to extend the logic of accountability to geopolitical actors, above all the United States and its closest friends.

Reviewing the international law debates that took place during the Vietnam War remains critically relevant to any reform of American foreign policy relating to these war/peace issues. As in Vietnam, adherence to international law would have been consistently beneficial normatively (upholding law, protecting the vulnerable, avoiding casualties), geopolitically (respecting support for the ethos of self-determination and human rights as evidenced by the flow of history since 1945), and ideologically (recognizing that ‘terrorism’ is a law enforcement issue, not an occasion for war making; realizing that nationalist ideology does not translate into neighbors becoming ‘falling dominos’).

The lesson that most needed to be learned in the Vietnam Era, and remains unlearned 40 years after the ending of war, is the practical and principled desirability of adherence to international law in war/peace situations. Systemic violations of international law lead to geopolitical disappointment, human suffering, societal devastation, and a nihilistic atmosphere of international lawlessness. In contrast, habits and policies of adherence to international law, especially with respect to war/peace issues and matters of national and global security, privileges an emphasis on diplomacy, international cooperation, law enforcement, UN authority, as well as generates the self-confidence of political communities to be respectful of prudent restraint and develop greater reliance in pursuit of national goals on international procedures, norms, and institutions. Such a shift away from lawlessness is, of course, by no means a guaranty of peace and justice, but it provides the crucial foundation for creating better prospects for human wellbeing in the 21st Century.

In my preoccupation during the years between 1963 and 1975 I became obsessed with the Vietnam War, and how I might act as a scholar and citizen to bring this imprudent, unlawful, and immoral war to an end. My writing in this period reflects a process of deepening engagement, and an evolving shift of focus and orientation. In my initial articles on the war I was seeking to demonstrate the unlawfulness of the underlying intervention in Vietnam, with a special emphasis on the American expansion of the war from a struggle for control of the state in what was then treated as ‘South Vietnam’ to a conflict that included then ‘North Vietnam,’ which altered the nature of the war from an internal war in the South to a war between the two political communities that comprised Vietnam after the French defeat in 1954, and persisted until the American defeat in 1975. In the early selections represented here, the international law arguments were underpinned by a realist assessment that rested on the informed belief that this was an ill-considered commitment of U.S. military forces for the sake of a very dubious conception of national interests, which centered on an imprudent opposition to the anti-colonial and pro-nationalist flow of history.

My attitudes toward the war, while never losing the central conviction that the United States was engaged in Vietnam in a manner that violated the most fundamental norms of international law, shifted in the direction of viewing the tactical conduct of the war as increasingly raising questions of international criminal accountability. This shift is reflected in the later selections from my writing that emphasize the relevance of the Nuremberg Principles to the American involvement in Vietnam.[10] I became convinced that a one-sided war in which high technology weaponry was deployed against a totally vulnerable peasant society was an intrinsically criminal enterprise, and additionally almost inevitably gave rise to battlefield atrocities as mythified through treating the My Lai massacre as a singular event.[11] I was also struck by the degree to which the geopolitical status of the United States marginalized the United Nations and limited the relevance of international law to a domestic debate within the United States between the government and its critics in Congress and throughout American society.

One enduring effect of this debate was to give the American anti-war movement the confidence to challenge government policy despite the inhibitions of the Cold War that made any seeming sympathy for the Communist side in the Vietnamese struggle grounds for suspicion and media hostility, particularly in the early years of the war. It is only toward the end of the Vietnam War when the government lost the trust of a large portion of the citizenry and split the foreign policy establishment, as well as becoming clear that the sacrifice of young American lives was not going to end in a military victory, that the prudential arguments against continuing the war began to outweigh the ideological case for its prosecution. This development also had the effect of pushing public opinion in an anti-war direction.[12]

[1] In the midst of the Vietnam War I edited a four volume series on the relevance of international law to the policies guiding decision makers and policy advocates on both sides of the debate that raged throughout the war.

[3] For a range of views see Jeremy R. Hammond, Obstacle to Peace: The U.S. Role in the Israeli-Palestinian Conflict (Worldview Publications, forthcoming 2015); Rashid Khalidi, Brokers of Deceit: How the U.S. Has Undermined Peace in the Middle East (Boston: Beacon Press, 2013); Peter Bauck & Mohammed Omer, eds., The Oslo Accords, 1993-2013 (Cairo, Egypt: American University in Cairo Press, 2013); For the U.S. /Israeli spin on the peace process see Dennis Ross, The Missing Peace: The Inside Story of the Fight for Middle East Peace (New York: Farrar, Strauss & Giroux, 2004).

[4] J. William Fulbright, The Arrogance of Power (New York: Random House, 1966).

[5] As argued in Richard Falk, Palestine: The Legitimacy of Hope (Washington, D.C.: Just World Books, 2014).

[7] An important early account along these lines in the Japanese context is Richard H. Minear, Victors’ Justice: The Tokyo War Crimes Tribunal (Princeton, NJ: Princeton University Press, 1971).

[8] Justice Robert Jackson, the American prosecutor, did argue to the tribunal in Nuremberg that the legitimacy of the judgment against the German defendants depended upon the victors in the future accepting the same framework of accountability, but such words fell on deaf ears in the capitals of the world powers.

[9]The proceedings of the Russell Tribunal can be found in John Duffett, ed., Against the Crime of Silence: Proceedings of the Russell International War Crimes Tribunal, Stockholm-Copenhagen (New York: Bertrand Russell Peace Foundation, 1968).

[10] These issues were fully explored in Richard Falk, Gabriel Kolko, and Robert Jay Lifton, eds., Crimes of War: A legal, political-documentary, and psychological inquiry into the responsibility of leaders, citizens, and soldiers (New York: Random House, 1971).

[11] For the initial expose see Seymour M. Hersh, My Lai 4: A Report on the Massacre and its Aftermath (New York: Random House, 1970). See also Kendrick Oliver, The My Lai Massacre in American history and memory, (Manchester: Manchester University Press, 2006).

[12] The release of the Pentagon Papers was a milestone along the path that led from a pro-war consensus to a rising tide of opposition. See interpretation by Daniel Ellsberg, Secrets: A Memoir of Vietnam and the Pentagon Papers (New York: Penguin Books, 2002).

[Prefatory Note: The post below is a modified text of an interview conversation with Khourosh Ziabari, initially published on the website of the Organization for Defending Victims of Violence on February 4, 2018, <info@odvv.org>] </info@odvv.org>

Peace and Justice for the Palestinian People: a conversation

Khourosh Ziabari: Humanitarian crisis in Gaza has entered its 11th year as the crippling siege by Israel is making the living conditions of Palestinians more complicated with time. The blockade in what is popularly referred to as the world’s “largest open-air prison” means growing unemployment, people having intermittent access to pure water, the economy is almost dysfunctional and poor infrastructure and lack of funding make the two-million population vulnerable to heavy rains and extreme weather. The former United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories believes Israel is not doing enough to make the living conditions of Gaza Palestinians better, and the United States is also failing to play a constructive role.

Richard Falk is a professor emeritus of international law at Princeton University, who has published and co-edited some 40 books on human rights, international humanitarian law and the Israeli-Palestinian conflict.

In an interview with the Organization for Defending Victims of Violence, Prof Falk shared his views on the recent controversy surrounding President Trump’s proposal to move the U.S. Embassy to Jerusalem and the ongoing humanitarian emergency in the Palestinian territories.

Q: In a piece recently published on Foreign Policy Journal, you talked of Palestine as being a hugely discriminated against nation, which in the recent decades has undergone major hardships due to the inability or reluctance of the United Nations to take steps to balance the needs of the Palestinian people against the political leverage of Israel and its allies. The improvement of the living conditions of the Palestinians depends on a logical and justifiable way out being found to end the conflict. Is the international community really unable to come up with a sustainable and all-encompassing solution?

A: The failure of the international community with respect to the Palestinian people and their legitimate grievances is due to several special circumstances; most importantly, the underlying determination of the Zionist movement to control most of Palestine as delimited by the British mandate. In this respect, assertions by Israeli leaders of their desire for a political compromise should never been accepted at face value, and are patently insincere, public relations gestures seeking to influence international public opinion, and convey the false impression that Israel is seeking a political compromise with Palestine.

Secondly, this Zionist ambition is now strongly supported by the United States despite not being clearly articulated by the government of Israel. This obscurity, essentially a deception, allows the international community to act as if a peace process is capable of producing a solution for the conflict even though Israel’s actions on the ground point ever more clearly toward an imposed unilateral outcome, which essentially is a unilateral insistence that the conflict has been resolved in favor of Israel.

Thirdly, the ‘special relationship’ between Israel and the U.S. translates into a geopolitical protection arrangement encompassing security issues and even extending to insulating Israel from censure at the UN, especially by the Security Council, and making sanctions impossible to impose. In such a setting, the Israelis are able to pursue their goals, while ignoring Palestinian grievances, which results in tragedy and suffering for the Palestinian people. Given the balance of forces, there is no end in sight that might end the conflict in a fair way.

Q: President Donald Trump’s recognition of Jerusalem as the capital of Israel and his plan to move the U.S. embassy to this city met a big resistance at the United Nations, both on the General Assembly and Security Council levels. Why do you think the international community and even the major U.S. allies didn’t say yes to this proposal?

A: Trump’s initiative on Jerusalem ruptured whatever fragile basis existed for seeking a diplomatic solution for relations between Israel and Palestine. There had been a clear understanding, respected by prior American leaders, that the disposition of Jerusalem was a matter that was to be settled only through negotiations between the parties. This understanding was broken by the Trump initiative for no apparent reasons beyond pleasing Netanyahu and some wealthy Zionist donors in the U.S. Beyond this, for Trump to side with Israel on such a sensitive issue, which deeply matters symbolically and substantively, not only for Palestinians, but for Muslims everywhere, and even for Christians, damaged beyond repair the credibility of the United States to act an acceptable intermediary in any future peace process.

American credibility was at a low level anyway, but this latest step relating to Jerusalem, removed, at least for the foreseeable future, any doubt about the American partisan approach, and more dramatically, made it evident that diplomacy based on the two-state solution had reached a point of no return.

In one respect, the Trump move on Jerusalem lifted the scales from the eyes of the world. It should have been clear for some years that the size of the settlement phenomenon and the influence of the settlers, now numbering about 800,000, had made it impractical to contemplate the establishment of a genuinely independent and viable Palestinian state. As well, the U.S. had long ceased to be an honest broker in the diplomatic settings that were described by reference to ‘the peace process,’ and probably never was partisan from the outset of the international search for an outcome that was a genuine political compromise. If there is to be an effective diplomacy with respect to the relations between the two peoples, it must, in any event, be preceded by dismantling the apartheid structures that were developed by Israel over the decades to subjugate the Palestinian people as a whole and the United States must be replaced by a credible third party intermediary. Israel feels no pressure to accept such changes, and so there is no current alternative to exerting pressure on this untenable status quo through support for militant nonviolent forms of Palestinian resistance and the global solidarity movement, with a special recognition of the contributions of the BDS campaign. It may be relevant to note that the BDS Campaign has been nominated to receive the Nobel Peace Prize in 2018.

Q: In the recent years, many resolutions and statements have been issued in condemnation of the expansion of Israel’s settlements in the Palestinian territories occupied following the Six-Day War in 1967 by the UN General Assembly and its affiliated human rights bodies. Even the UNSC Resolution 2334 (2016) declares Israel’s settlement activity a “flagrant violation” of international law. Is the publication of statements and condemning a state, while the state itself doesn’t recognize the demands and considers them invalid, a viable solution? If the international community is convinced that Israel should stop the illegal settlements, then how is it possible to make it happen?

A: The continued expansion of the settlements despite their flagrant violation of Article 49(6) of the Fourth Geneva Convention is both an expression of Israel’s contempt for international law and for world public opinion. It also reveals the impotence of the UN to do anything effective to impose its will that is any more consequential than the issuance of complaints. When geopolitical realities shield the behavior of a state from international pressures, the UN is helpless to implement its resolutions, and international law is put to one side. The UN is an organization of states, and limited in its capacity to shape behavior, especially by the veto power of the five permanent members of the Security Council. As such, the UN was never expected to have the constitutional capacity to overcome the strongly held views and commitments of the five states given permanent membership and the right of veto in the Security Council in the UN Charter. The Security Council is the only organ of the UN System with clear authority to reach and implement decisions, as distinct from advisory opinions and recommendations. The Israel/Palestine conflict is an extreme version of the Faustian Bargain struck between the geopolitical power structure and global justice, which was written into the UN Charter and the constitutional framework of the UN, as well as exhibited in UN practice over the years.

Q: News reports and figures show that the living standards and the economic conditions in the Gaza Strip are getting worse as time goes by. The unemployment rate has climbed to 46%. Research organizations and local media say 65% of the population is grappling with poverty and the food insecurity rate is roughly 50%. How do you think the perturbing humanitarian crisis in Gaza can be alleviated?

A: It is difficult to comprehend accurately the Israeli approach to Gaza as its motivations are very different from its stated justifications. Israeli policy often appears cruel and vindictive, with security rationales sounding more like pretexts than explanations. Excessive force has been repeatedly used by Israel in Gaza, and little effort to achieve some kind of tolerable stability has been made.

Israel has rejected a series of proposals for long-term ceasefires put forward by Hamas during the past decade. Israel has periodically attacked Gaza, inflicting heavy damage on a helpless and impoverished civilian society in 2008-09, 2012, and 2014 while the international community condemned these excessive uses of force. Now that the economic squeeze is pushing Gaza once again toward the brink of a humanitarian disaster the ordeal of the nearly two million Palestinians entrapped and utterly vulnerable. The situation in Gaza is once again a matter of grave concern, with humanitarian alarms being sounded by those with knowledge of the precarious health and subsistence crisis facing the population.

It is unclear what Israel actually wants to have happen in Gaza. Unlike the West Bank and Jerusalem, Gaza is not part of the Zionist territorial game plan, and is not considered part of biblical Israel. To the extent that Israel is pursuing a one-state solution imposed on the Palestinians, Gaza would be likely excluded as adding its population to that of Israel would risk exploding ‘the demographic bomb’ that has for so long worried Israelis because of endangering the artificially generated Jewish majority population, and supposed ‘democratic’ control of this ethnocratic polity.

The Zionist project has long resorted to extreme measures to achieve and then sustain the democratic pretension of its governing process, initially dispossessing as many as 700,000 Palestinians from the territory that became Israel in 1948. This coerced dispossession during combat was combined with a post-conflict refusal to allow those who left their homes and villages during wartime any right of return. Such ethnic cleansing was reinforce by completely destroying hundreds of Palestinian villages with bulldozers. This pattern of controlling the population ratio between Jews and non-Jews has been a persistent issue ever since the Balfour Declaration was issued in 1917 when the Jewish population of Palestine was about 5%. In the early period, the Zionist effort was focused on overcoming the Jewish demographic minority status by stimulating and subsidizing Jewish immigration. Yet even after the surge in immigration prompted by the rise of Nazism and European anti-Semitism, the Jewish population of Palestine was only about 30% at the start of the 1947-48 War.

Israel would probably like to have Gaza disappear. If that is not going to happen, then the second best solution is to entrust Jordan or Egypt with administrative control, security responsibility, and sovereign authority. So far neither Arab government wants to assume control over Gaza. With these considerations in mind, Israel seems determined to maintain instense pressure on Gaza, allowing the population to hover around the subsistence threshold, and to signal Israeli aggressiveness to the rest of the region, asserting a military presence from time to time that seems both punitive and designed to remind Gazans that resistance on their part would be met with overwhelming lethal force causing devastation and heavy casualties, including imposing a condition of enduring despair on the civilian population.

What struck me as the most significant dimension of the Jerusalem votes in the Security Council and General Assembly has been oddly overlooked by most commentary in the media. The public discourse has, of course, been correct to identify the isolation of the United States with respect to the rest of the world as well as regarding the majority position as a defiant rejection of Trump’s leadership and bullying tactics. Although as some have noted, without the bullying by Ambassador Haley (including, I will report yes votes to the president; those that vote for the resolution will not receive economic assistance in the future; we are watching; “America will remember this day;” “the vote will make a difference on how Americans look at the UN.”), there might been as many as 150 positive votes for the resolution instead of 128, with fewer abstentions (35) and fewer absences from the vote (21).

Nevertheless, 128-9 is a clear expression of an overwhelming moral and legal sentiment, and deserves to be respected by any government that values the role of the General Assembly as the arbiter of legitimacy with respect to sensitive global issues. Although far weaker and more subject to geopolitical manipulation than is desirable, these main political organs of the UN provide the best guide that currently exists as to what global policy should be if the global and human interest is to be protected, and not merely an array of national interests and their multilateral aggregation to achieve cooperative results.

What this discussion glosses over in this instance without stopping to observe its significance is the degree to which issues of substance prevailed over matters of geopolitical alignment. Not one of America’s closest allies (UK, France, Germany, and Japan) heeded the fervent arguments and pleas of Haley and Trump. Beyond this, every important country in the world backed the General Assembly Resolution on December 21, 2017 regardless of geography or political orientation (China, Russia, India, Brazil, Turkey, India, Pakistan, Saudi Arabia, Iran). This unanimity enhances the quality of the consensus supportive of the resolution repudiating Trump’s arrogant decision to recognize Jerusalem as Israel’s capital as ‘null and void.’ Such an impression is strengthened by listing the nine governments that voted against the resolution (Guatemala, Honduras, Marshall Islands, Israel, Miscronesia, Nauru, Palau, Togo, and the U.S.).

Should these striking results be interpreted as the demise, or at least twilight, of geopolitics? Any such speculation would be wildly premature. What seems to have swayed many governments in this case is the negative fallout expected to follow from Trump’s unilateralism that disregards decades of international practice and agreement about the status and treatment of Jerusalem, as well as the gratuitous neglect of Palestinian rights and aspirations by taking such an initiative without even pretending to take account of Palestinian grievances. In this regard, Trump’s poor international reputation as a result of pulling out of the Paris Climate Change Agreement, decertification of the Nuclear Agreement with Iran, and withdrawal from negotiations to fashion an agreed approach to the global migration crisis undoubtedly help tip the scales on the Jerusalem resolution, especially among European governments. Trump’s unpopular implementation of his diplomacy of ‘America, First’ is arguably morphing into the disturbing perception of ‘America, Last’ or the United States as ‘rogue superpower.’ Consciously or not, the UN vote was a distress signal directed at Washington by friends and adversaries alike, but as near as can be told, it will be disregarded or angrily rebuffed by the White House and its spokespersons unless they decide to pass over these happenings in silence.

As has been observed, the Jerusalem decision was not part of a carefully crafted international approach to the Israel/Palestine struggle. It seemed mainly to be a payoff to domestic support groups of Trump’s presidential campaign in the United States (large pro-Israeli donors and Christian Evangelists wedded to a (mis)reading of the Book of Revelations), as well as a further display of post-Obama affection for Bibi Netanyahu. Apparently, for Trump being adored in Tel Aviv seems worth being discredited with allies and leading states throughout the rest of the world. As for the threatened major aid recipients (Afghanistan, Egypt, Pakistan, Nigeria, Ethiopia, Tanzania, and South Africa; Kenya was absent during the vote); it was impressive that all of these states ignored the threat and voted for the resolution. If Washington follows through on withholding aid it will certainly not serve America’s strategic interests as previously understood, particularly in the Middle East, but also in Africa. Yet if it fails to carry its threat, its diplomatic posture will be seen as that of a novice poker player whose untimely bluff has been called.

There is also the question of ‘what next?’ Will the Jerusalem resolution be remembered as a moment in time to be superseded by contrary behavioral trends? In this regard, the U.S. now has its own chance to exhibit defiance and disrespect by quickly and ostentatiously moving its embassy to Jerusalem, which will of course give rise to further anger. The Turkish president, Recep Tayyip Erdoğan has already seized the occasion to reassert its prominence in the Muslim world, first by co-sponsoring (with Yemen) the resolution, and then by explicitly calling on the U.S. Government to rescind its decision to recognize Jerusalem as the capital of Israel. I would darkly imagine that the Trump presidency would opt for World War III before it backed down on Jerusalem.

As widely reported, the Jerusalem resolution is symbolic in nature, and yet it does have serious political consequences for all relevant political actors. Does it clear a political space for the European Union to play a central role in seeking to revive a diplomatic approach on a more balanced basis than what could have been expected from Washington? How does the U.S. Government negotiate the fine line between disregarding the resolution and harming its foreign policy objectives in the Middle East? How unyielding should the Palestinian Authority be about insisting on a parallel recognition of East Jerusalem as the capital of Palestine before it agrees to participate in negotiations with Israel? Will Turkey seek further steps at the UN and elsewhere to back up the resolution, including possibly fashioning realignments throughout the Middle East? Will the second tier of officials in the Trump Administration create pressure to create a foreign policy that more closely reflects U.S. national interests by taking better account of the many dimensions (digital, economic, security) of global integration?

[Prefatory Note: The following post is a modified version of an article published on December 8th in Middle East Eye. It considers the normative and geopolitical sides of Trump’s unilateralism. Apologists claiming Trump finally acknowledged the operational reality that Jerusalem has been serving as the capital of Israel for the last 50 years, and the disruptive effects have been exaggerated as Saudi Arabia has not reacted in a strongly negative manner. Critics, including myself, regard the initiative as a gratuitous slap at the Palestinians and a further confirmation of Trump’s disregard of international law, international morality, and the authority of the United Nations. The status of Jerusalem serves as a focal point for the tension between the old geopolitics of hard power realism and the normative geopolitics of soft power new realism that is struggling through a birthing process in many settings. In my view the resolution of this tension will shape the trajectory of 21st century humanity. In other words, the stakes are high.]

Recognizing Jerusalem as Israel’s Capital

With the deftness of a bull in a china shop, Donald Trump has ignored the advice of several close advisors, disregarded the fervent pleas of several of Israel’s closest Arab neighbors, ignored warnings of America’s traditional allies in the Middle East and Europe, and ruptured a key element of an international consensus that had long prevailed at the UN, by going ahead to proclaim formally Washington’s view that Jerusalem is and will be the capital of Israel. Such a declaration serves also to rationalize the prior pledge to move the American Embassy from Tel Aviv, the city where every other country in the world insists on maintaining its government to government relationship with Israel, to the city of Jerusalem, sacred to all three of the monotheistic religions.

The most obvious question to pose is one of motivations: Why? Strange as it may seem to those living in the Middle East, the most persuasive explanation is that Trump saw this act of recognition as an opportunity to show his most fervent supporters at home that he was being true to his campaign promises. Trump has been frustrated during the first year of his presidency by his embarrassing inability to carry out the program that helped get him elected in 2016. It is true that by taking this further step toward relocating the American embassy Trump’s popularity in Israel spiked and as he has pointed out he is actually doing what his predecessors and Congress has long proposed.

In essence, Trump seems to have taken this internationally controversial step because he cares about pleasing the Christian Zionists and the Israeli Lobby in America more than he does about ruffling the feathers of UN diplomats, possibly inflaming the Arab masses, removing the last shred of doubt among Palestinians that the U.S. could ever be trusted to play the role of ‘honest broker,’ or even partisan intermediary, in the pursuit of a two-state solution, and perhaps most of all, connecting American foreign policy in the turbulent Middle East is some durable and coherent way with strategic national interests in regional stability.

From this perspective, Trump has once again demonstrated his extraordinary talent for choosing the worst possible alternative in delicate international situations where dire consequences could follow from the wrong policy turn, and the rewards of going it alone seem minimal and transient, at best.

This vivid instance of Jerusalem unilateralism parallels the geopolitical stupidity of withdrawing from the Paris Climate Change Agreement of 2015 a few months ago. There also the Trump approach to foreign policy seemed perversely designed to burnish its already secure reputation as the first rogue superpower of the nuclear age. This global spoiler role is also dangerously evident in the apocalyptic threat diplomacy adopted by Trump in the Korean Peninsula as a response to Kim Jong-un’s nuclear weapons program, which include provocative bluster, weapons developments, and grave risks of mutual miscalculation.

Liberal opinion in the U.S. and abroad lamented the Trump initiative on Jerusalem for the wrong reasons. Especially prominent was the assertion in various forms that Trump had damaged, if not destroyed, the ‘peace process,’ and its special role as convening party. Such a concern presupposes that a peace process sufficiently existed to be susceptible to being destroyed. While promising ‘the deal of the century,’ Trump turned over his supposed peace offensive, to pro-Zionist extremists and settler fundamentalists (David M. Friedman, Jared Kushner, and Jason Greenblatt) whose obvious goal was not peace, but putting the finishing touches on what they regarded as an Israeli victory that only needed a face-saving exit arrangement for the Palestinian Authority to complete the job. Working in tandem with the Netanyahu leadership, the Trump effort has been so far focused on killing ‘the two-state solution,’ at least in its claim to satisfy reasonable Palestinian expectations of self-determination in the form of a viable and truly independent sovereign state with its capital in East Jerusalem. In its place, one supposes that the Trump ‘dream team’ will come up with a non-viable polity in what remains under Palestinian control in the West Bank, either tied to Gaza or separated in some enduring way, affronting reality by calling the plan a fulfillment of two-state expectations, and dismissing Palestinian objections as ‘rejectionism,’ a stubborn insistence on having it all, and in the end, a take it or leave it version of Hobson’s Choice.

As matters now stand, the status quo is also very unfavorable from the point of view of the Palestinian national struggle and the implementation of the international community’s version of a reasonable compromise. This status quo of occupation and dispossession facilitates the continuing conversion of the 1967 ‘occupation’ of Palestinian territory into a permanent reality that unlawfully blends the annexation of the West Bank and East Jerusalem with the maintenance of control over the Palestinian people by means of apartheid structures of subjugation. If this assessment is correct, then moving the American Embassy to Jerusalem can be seen as supportive of Netanyahu’s apparent conception of the end-game of this hundred year struggle between the national aspirations of these two embattled peoples. In this regard, the bluntness of the Trump approach exposes to the world an ugly reality that should have been obvious all along to anyone looking at Israeli behavior with a critical eye, or grasping the policy fallout from the ‘America First’ mantra.

What gives this regressive turn its plausibility, posing yet another challenge to the Palestinian movement, is the blind eye that the new look in Riyadh has turned toward even the Judaization of Jerusalem, which would seem to confirm the Saudi priority of geopolitical collaboration with the United States and Israel, even at the expense of fundamental Islamic concerns and the maintenance of solidarity in the Muslim world. In this sense, it is well to take some note of the declaration of the Organization of Islamic Cooperation (OIC), endorsed by all 57 of its member states (including Saudi Arabia), that Jerusalem is the capital of Palestine, denying Israel any right to a formal governing process in the city.

While this substantive analysis helps us grasp the geopolitical context that makes recognition of Jerusalem as Israel’s capital a kick in the groin of Palestinian delusions about a viable peace diplomacy while at the same time leading most Israelis to dance in the streets. It also underscores the hypocrisy of the international community’s call for reviving the peace process when it should long have been evident that Israeli settlement expansion as well as Tel Aviv’s approach to Jerusalem had passed the point of no return, and thus the occasion for abandoning an unworkable diplomacy, and facing with honesty the daunting question—‘What next?.’ Israel’s recent behavior makes it clear for all except hasbarists that the Israeli government has no current willingness whatsoever to end the conflict if this means creating an independent Palestinian state delimited by 1967 borders, thereby encompassing West Bank, Gaza, and East Jerusalem. For Israel the alternatives are perpetuating the apartheid status quo or allowing for the emergence of ‘Bantustan Palestine’ as the diplomatic price that the Netanyahu leadership is willing to pay for a certification of ‘peaceful solution.’

From the issuance of the Balfour Declaration in 1917 to this historic moment acknowledging Israel’s claims to Jerusalem, Zionism and since 1948, the state of Israel, have disseminated a double-coded message to the world. In its public utterances, Israel’s public posture is one of a readiness for compromise and peaceful coexistence with the Palestinians, while its practices and actual objectives, can only be understood as the step by step consistent pursuit of the visionary ideal of Greater Israel or Our Promised Land. The present Israeli ambassador to the U.S., Ron Dermer, in the course of thanking Trump for standing so strongly with Israel, told an American TV audience that Jerusalem has been truly the capital of the Jewish people for 3,000 years. No where has Israel’s double-coding been more evident than in relation to Jerusalem. It uses the grandiose claims of Jewish religion tradition when it can and the somewhat more constraining diplomacy of statecraft when it offers opportunities, and does its best to avoid altogether the precepts of international humanitarian law or the UN consensus.

On the public discourse side stands Israel’s public acceptance of the partition arrangements embodied in General Assembly Resolution 181, which included the internationalization of Jerusalem under UN administration. More critically viewed from a behavioral discourse perspective, Israel’s actual conduct flagrantly consistently defied international law by formally enlarging and annexing Jerusalem as ‘the eternal capital’ of the Jewish people and manipulating the demographics and cultural heritage of the city in ways that made it seem more credible to regard the whole of Jerusalem as a Jewish city.

It is difficult for even notorious Israeli apologists, such as Elliot Abrams or former American ambassadors to Israel to defend the actual Trump decision. Such apologists prefer to adopt a default position. Yes, the timing of the White House initiative was tactically questionable, but its international condemnation greatly exaggerates its importance and inappropriateness. They view criticisms and concerns as overblown, amounting to a display of ‘heavy breathing.’ In effect these apologists agree with Trump’s core contention that the acceptance of Israel’s claim to have its capital in Jerusalem, is an overdue recognition of reality, nothing more, nothing less, and that the rest of the world will have to learn to live with this recognition. Time will tell whether this downplaying of fears of renewed violence of resistance and anti-Americanism are anything other than a feeble attempt by apologists to reaffirm Israel’s legitimacy in the face of what should turn out to be a geopolitical fiasco.

What should dismay the region and the world the most about Trump’s Jerusalem policy is its peculiar mixture of ignoring law, morality, and the international consensus while so blatantly harming America’s more constructively conceived national interests and tradition of global leadership. This mixture becomes toxic with respect to Jerusalem because by humiliating the Palestinian national movement and ignoring the symbolic status of Jerusalem for Muslims and the Arab peoples, it makes violent extremism more likely while lending support to existing postures of anti-Americanism. How incoherent and self-defeating to proclaim the defeat of ISIS and political extremism as the top American priority and then making this Jerusalem move that is virtually certain to produce populist rage and an extremist backlash. No ISIS recruiter could have wished for more!

[Preliminary Remarks: What follows is the modified transcript of a talk given at Fordham University School of Law honoring the memory of the recently deceased Maryknoll priest, Father Miguel d’Escoto, who had been both the Foreign Minister of Sandinista Nicaragua and President of the UN General Assembly, as well as pastor to the poor in the spirit of Pope Francis, an extraordinary person who fused a practical engagement in the world with a deeply spiritual nature that affected all who were privileged to know and work with him.]

It is a humbling honor to speak at this gathering of remembrance dedicated to a truly great human being who inspired and touched the lives and activities of so many of us in this room. Kevin Cahill is among those here who had such an intimate and sustained friendship with Father Miguel. Kevin is also a person with his own abundant inspirational gifts, and I remain deeply grateful to him for originally bringing me into contact with Miguel.

Others here today could assuredly speak more knowingly about the person. I will only offer this personal observation: Miguel exhibited a remarkable quality of moral radiance that was immediately apparent to all those fortunate enough to cross his path. The only person in my experience who possessed a comparable depth of ethical being was Nelson Mandela with whom I had a single and brief, yet memorable, encounter.

The title given to my remarks is something I admit imposing upon myself, and now at this moment of delivery strikes me now as far too ambitious. I chose such a theme because it does reflect the most enduring and empowering dimension of my association with Miguel, and seemed appropriate to reflect upon in the venerable academic venue of the Fordham School of Law.

My point of departure is this: if we believe, which many do not, that justice is the proper end of law, then we must struggle to overcome the calculative or transactional mentality that dominates our legal culture, restricting our attitudes and endeavors involving law to the domain of the feasible. I am fully aware that I am endorsing an unconventional outlook by elevating the moral imagination and what I would call ‘utopian realism.’ This kind of formulation disregards the conventional understanding of law as essentially offering a suite of techniques for problem-solving that presupposes a view of politics as ‘the art of the possible.’

It is this kind of ethical radicalism that made the life of Father Miguel so exemplary, and in the best sense, ‘revolutionary,’ for all those whose lives he affected whether in ministering to the poor or challenging the high and mighty, whether acting in a pastoral capacity or as a man of the world. It is important to appreciate that Miguel was both an ardent Nicaraguan nationalist and a passionate citizen of the world, what I call a ‘citizen pilgrim,’ embarked on a pilgrimage to a global future that embodies peace with justice.

Let me preface this inquiry into the spiritual sources of legal creativity with a general remark that pertains particularly to international law. I may be almost alone among law professors in believing that that international law is the field of law that is most relevant to the ultimate survival of the human species. The sad reality is that international law continues to struggle for survival as a field of study, being often denigrated, evaded, and violated by the most powerful governments on the planet whenever law is seen as blocking a preferred policy and there are always many apologists among the ranks of legal experts and diplomats ready to offer a comforting rationalization.

And yet viewed from a perspective other than war/peace and security, international law in relation to trade and investment has basically served to protect the interests of the rich and powerful, while shackling the poor and vulnerable. In other words, international law has this dual face: it bends to the geopolitical will of the militarily powerful while often cruelly imposing accountability on the weak. At the founding of the UN a Mexican diplomat caustically observed that ‘we have created an organization that regulates the mice while the tigers roam freely.’ And so it is.

It is against this background that Miguel d’Escoto’s spiritual wisdom creates a contrast with business as usual in the world of real politik. Even for most global reformers, the criterion for constructive action is a realistic appreciation of achievable limits, what I would identify as horizons of feasibility. We are living increasingly in a world in which there are growing gaps between what is feasible and what is necessary, what I identify as horizons of necessity. Adapting to climate change in the Age of Trump underscores this menacing gap between feasibility and necessity. As a diplomat Father Miguel was almost unconcerned with feasibility as conventionally understood if it stood in the way of necessity or desirability. He was deeply sensitive to the imperatives of necessity, and even more so to the moral and spiritual imperatives of doing what is right under a particular set of circumstances, and for this reason alone he was most responsive to what I identify here as horizons of spirituality.

He was motivated by a belief, undoubtedly reflecting his religious faith, in the potency of right reason, and on this basis conceived of international law as a crucial vehicle for realizing such a vision, embracing with moral enthusiasm a kind of ‘politics of impossibility’ in which considerations of justice outweighed calculations of feasibility or the obstacles associated with geopolitics. It is with an awareness of the trials and tribulation of Nicaragua and its long suffering population that Father Miguel turned to law as an imaginative means of empowerment.

Let me illustrate by reference to the historic case that Nicaragua brought against the United States in the early 1980s at the International Court of Justice in The Hague. It was a daring legal flight of moral fancy to suppose that tiny and beleaguered Nicaragua could shift its struggle from the bloody battlefields of U.S. armed intervention and a mercenary insurgency against the Sandinista Government of which he was then Foreign Minister to the lofty legal terrain that itself had been originally crafted to reflect the values and interests of dominant states, the geopolitical players on the global stage. But more than this it was a brilliant leap of political imagination to envision the soft power of law neutralizing the hard power of high tech weaponry in a high stakes ideological struggle being waged in the midst of the Cold War.

Such an attempt to shift the balance of forces in an ongoing conflict by recourse to international law and the World Court had never before been made in any serious way. It was a David and Goliath challenge that the World Court as the highest judicial institution in the UN System had yet to face in a war/peace context, and it turned out to be a test of the integrity of the institution.

Let me recall the situation in Nicaragua briefly. The United States was supporting a right-wing insurgency, the counterrevolutionary remnant of the Somoza dictatorship, a single family that had cruelly and corruptly ruled Nicaragua between 1936 and 1974 on behalf of corporate America (the era of ‘banana republics’), leaving the country in impoverished ruins when the Somoza dynasty finally collapsed. The Somoza-oriented insurgents were known as the Contras, and were called ‘freedom fighters’ by their American sponsors and paymaster because they were opposing the Sandinista Government that had won a war of national liberation in 1979, but was accused by its detractors of leftist tendencies and Soviet sympathies, which was the right-wing ideological way of obscuring the true affinity of the Sandinista leadership with the teachings of Liberation Theology rather than with the secular dogmatics of Marxism. It was a way of depriving the people of Nicaragua of their inalienable right of self-determination. The United States Government via the CIA was training and equipping the Contras, and quite overtly committing acts of war by mining and blockading Managua, Nicaragua’s main harbor and its lifeline to the world.

It was these interventionary undertakings that flouted the authority of international law and the UN Charter. Father Miguel’s addressed the UN General Assembly in his capacity as Nicaragua’s acting Foreign Minister, vividly describing the conflict with some well-chosen provocative words: “It is obvious that the war to which Nicaragua is being subjected is a U.S. war, and the so-called Contras are merely hired hands serving the diabolical objectives of the Reagan Administration.” Later in the same speech he condemned the U.S. Government for recently appropriating an additional $100 million “to finance genocide against our people.” [Address to UNGA, Nov. 3, 1986]

I quote this robust language partly to show that Father Miguel’s spiritual nature did not always mean a gentle demeanor or denote the absence of a fighting spirit. As here, when deemed appropriate to the situation, Miguel readily relied on undiplomatic candor to get his point across. He was also insistent on using such occasions to talk truth to power and to lay blame and responsibility for the torment of the Nicaraguan people where it belonged, however impolitic it was to do so.

Without going into the details of the case, it was possible for Nicaragua to lodge such a complaint against the United States because the U.S. Government had earlier agreed to accept the authority of the ICJ if the other side in an international conflict had been similarly committed. With this awareness, Father Miguel in his role as Foreign Minister (1979-90) realized two things: that the sovereign rights of Nicaragua were being overridden in a manner in flagrant violation of international law and that the World Court was supposed to provide countries with a nonviolent option of resolving international legal disputes, seen as an important contribution to maintaining world peace that the U.S. had itself strongly championed throughout most of the 20th century.

It may not seem so unusual for a small country to take advantage of a potential judicial remedy, but in fact it had never happened—no small state had ever gone to the World Court to protect itself against such military intervention, and to do so on behalf of a progressive government in the Third World in the midst of the Cold War seemed to many at the time like a waste of time and money that Nicaragua could ill afford.

It is here where one begins to grasp this potentially revolutionary idea of relying upon the spiritual sources of legal creativity. Father Miguel was convinced that what the United States Government was doing was legally and morally wrong, and that it was an opportune time for the mice to fight back against the predator tiger. It was an apt occasion to act by reference to horizons of spirituality.

Yet this did not mean that Miguel would ignore the pragmatic dimensions of effectiveness. Nicaragua managed to persuade Harvard law professor, Abram Chayes, to act on their behalf as head legal counsel. This was a brilliant tactical move that I applauded at the time (even though it meant that as Nicaragua’s second choice I lost out). Aside from being a first-class international lawyer with a high global profile, Chayes had previously served as John F. Kennedy’s Legal Advisor and close confidant at the time of the Cuban Missile Crisis. The symbolism could not have been more pointed, underlining the fact that Chayes was committed to upholding international law rather than being a combatant in the ideological sideshow carried on throughout the Cold War. Not surprisingly, the Wall Street Journal audaciously described Chayes as ‘a traitor’ for accepting such a role.

I had the opportunity to work with Chayes and Father Miguel in the American Irish Historical Society here in Manhattan that was operating under the benign tutelage of none other than Dr. Kevin Cahill. We worked hard for several days as a team developing the arguments both as to the authority of the ICJ to adjudicate, what we lawyers call ‘jurisdiction,’ to be decided in a separate preliminary decision, as well as on the substance of Nicaragua’s allegations, which constituted the second phase of the litigation. What was so impressive to me then, and even now, almost 40 years later, is that this effort to combine a somewhat utopian motivated legal undertaking with a practical mastery of the technical dimensions of the case illustrated for me the extraordinary blending of spiritually grounded, yet worldly wisdom with the down to earth skills of legal craft.

The outcome of the Nicaragua narrative is too complicated to describe properly, but in short—counsel for Nicaragua persuaded the Court that it had jurisdictional authority, at which point the United States petulantly, yet not unexpectedly, withdrew from the proceedings correctly realizing that if it could not prevail at this jurisdictional phase it had virtually no chance to have its legal arguments accepted at the merits phase of the case. Further, the U.S. Government was so displeased with the ICJ that it seized the occasion to renounce its earlier formal acceptance of what is technically referred to as ‘compulsory jurisdiction,’ which meant that no state could commence such an action against the USG in the future, and that the U.S. was itself permanently foreclosed from proceeding against a state against which it had legal grievances unless that state gave its consent.

This retreat from adjudicating international legal disputes has been an unintended and unfortunate lasting effect of the Nicaragua case. The American stance of viewing international law as only viable when it supports its geopolitical tactics has sent a damaging message to the world. It has definitely weakened the role and potential of the ICJ and of international judicial authority generally. In one sense, the US withdrawal was understandable for those who are driven to shape foreign policy by feasibility calculations rather than by certain abiding values such as, here, adhering to the rule of law. It hardly required a legal genius in the State Department to anticipate that if the Court upheld its legal authority to pronounce upon the controversy, then it would almost certainly rule in favor of Nicaragua on the substantive issues. Despite some technical issues involving the selection of the applicable legal authority, given the sweeping prohibitions of international law and the UN Charter against uses of force except in situations of self-defense against a prior armed attack, the pro-Nicaragua outcome was entirely predictable.

What was rather intriguing from a jurisprudential point of view was that despite its much hyped boycott of the proceedings and accompanying denunciation of the jurisdictional finding, the U.S. in the end quietly complied with the principal finding in The Hague, namely, that the naval blockade of Nicaragua’s harbors was unlawful. As would be expected, the USG never acknowledged that it was complying, nor did Nicaragua dance in the streets of Managua, but the cause/effect relationship between the judicial decision and compliant behavior was clear to any close observer.

There was then some reality to the expression ‘the force of law,’ and the USG, even during the Reagan presidency, did not want to stand before the world as openly defying the law, even international law. Such an assessment may have reflected the fact that the U.S. Government was in the midst of a struggle to win the legitimacy war being waged against the Soviet Union, which partly hinged on the relative reputation of these two dueling superpowers in relation to respect for international law and human rights, signature issues of ‘the free world.’

For me this Nicaragua experience was a compelling example of Father Miguel’s achievements that followed directly from his deep commitment to the horizons of spirituality and decency. It was far from the only instance. Let me mention two others very quickly. One of my other connections with Father Miguel was to serve as one of his Special Advisors during his year as President of the UN General Assembly thoughout its 63rd session, 2008-09. As continues to be the case, life could become difficult for any leading UN official who openly opposed Israel. Father Miguel was deeply aware of the Palestinian ordeal and unabashedly supportive of my contested role as Special Rapporteur for Occupied Palestine on behalf of the Human Rights Council in Geneva. When I was detained in an Israeli prison and then expelled from Israel at the end of 2008, Father Miguel wanted to organize a press conference in NYC to give me an opportunity to explain what had happened and defend my position. I declined his initiative, perhaps unadvisedly, as I didn’t want to place Miguel in the line of fire sure to follow.

At the end of 2008 Israel launched a massive attack against Gaza, known as Cast Lead, and Father Miguel sought to have the General Assembly condemn the attack and call for an immediate ceasefire and Israeli withdrawal. It was a difficult moment for Father Miguel, feeling certain that this was the legally and morally the right thing to do. Yet as events proceeded and diplomatic positions were disclosed, Miguel was forced to recognize that the logic of geopolitics worked differently, in fact so starkly differently that even the diplomat representing the Palestinian Authority at the UN intervened to support a milder reaction than what Miguel deemed appropriate. Unlike his Nicaraguan experience, here the backers of feasibility prevailed, but in a manner that Father Miguel could never reconcile himself to accept.

I met many diplomats at UN Headquarters here in NY who said that no one had ever occupied a high position at the UN with Father Miguel’s manifest quality as someone so passionately dedicated to righteous principle. Pondering this, it occurred to me that one possible exception was Dag Hammarskjöld, an early outstanding UN Secretary General, who died in a plane crash, apparently assassinated in 1961 for his principled, yet geopolitically inconvenient, dedication to peace and justice. From his private writings we know that Hammarskjöld’s UN efforts also sprung from wellsprings of spirituality.

Most GA presidents take the post as an honorific feather in their cap, the symbolic culmination of a public sector career, and spend the year presiding over numerous tedious meetings and hosting an endless series of afternoon receptions, but never make any effort to influence, much less enhance, the role of the General Assembly or otherwise strengthen the UN as an institution of potential global governance. Miguel, in contrast worked tirelessly to make the UN more effective, more respectful of law, more democratic, and above all, more sensitive to claims reflective of global justice.

Miguel took full advantage of his term as president of the General Assembly to provide venues within the Organization that offered humane alternatives to neoliberal economic globalization. He sponsored and organized meetings at the UN designed to overcome current patterns of economic and ecological injustice, making use of the presence in New York City of such non-mainstream economists as Jeffrey Sachs and Joseph Stiglitz, and the prominent Canadian activist author, Maude Barlow. Here again Father Miguel demonstrated his grounded spirituality by once more combining the visionary with the practical.

I had the opportunity to work with Father Miguel on several proposals to raise the profile and role of the General Assembly as the most representative and democratic organ of the UN. This initiative was rather strategic and partly meant to counter the US-led campaign to concentrate UN authority in Security Council so that Third World aspirations and demands could be effectively thwarted, and the primacy of geopolitics reestablished after the assault mounted in the 1970s by the then ascendant Nonaligned Movement.

What I have tried to describe is this deep bond in the life and work of Father Miguel between the spirituality of his character and motivations and the practicality of his involvement in what the German philosopher, Habermas, calls ‘the lifeworld.’ I find it indicative of Father Miguel’s deep spiritual identity that he suffered a punitive response to his life’s work from the institution he loved and dedicated his life to serving, being suspended in 1985 by Pope John Paul II from the priesthood because of his involvement in the Nicaraguan Revolution. Miguel was reinstated 29 years later by Pope Francis, who many view as a kindred spirit to Miguel.

There is an object lesson here for all of us: in a political crisis the moral imperative of service to people and ideals deserves precedence over blind obedience to even a cherished and hallowed institution. This would undoubtedly almost always pose a difficult and painful choice, but it was one that defined Father Miguel d’Escoto at the core of his being, which he expressed over and over by doing the right thing in a spirit of love and humility, but also in a manner that left no one doubting his firmness, his affinities and commitments, as well as his unwavering and abiding convictions.

As I suggested at the outset, the daring and creativity that Father Miguel brought to the law and to his work at the UN sprung from spiritual roots that were deeply grounded in both religious tradition and in an unshakable solidarity with those among us who are poor, vulnerable, oppressed, and victimized. For Miguel spirituality did not primarily equate with peace, but rather with justice and an accompanying uncompromising and lifelong struggle on behalf of what was right and righteous in every social context, whether personal or global.

There is no assurance that this way of believing and acting will control every development in the world or even control the ultimate destiny of the human species. Humanity retains the freedom to fail, which could mean extinction in the foreseeable future.The happy ending of the Nicaragua case needs to be balanced against the prolonged and tragic ordeal of the Palestinian people for which there is still no end in sight. Beyond wins and losses, what I think should be clear is that unless many more of us become attentive to the horizons of spirituality and necessity the outlook for the human future is presently bleak. Father Miguel d’Escoto’s disavowal of the domain of the feasible is assuredly not the only way to serve humanity, but it is a most inspiring way, and points us all in a direction that is underrepresented in the operations of governments and other public institutions, not to mention during the speculative frenzies on Wall Street and the backrooms of hedge fund offices.

In my language, Father Miguel d’Escoto was one of the great citizen pilgrims of our time. His life was a continuous journey toward what St. Paul called ‘a better city, a heavenly city’ to manage and shape the totality of life on Planet Earth.

The word hubris is far too kind in describing Donald Trump’s approach to the Middle East cauldron of conflict, with his response to the Palestinian struggle being more revealing of his absurd braggadocio brand than of malice, although its impact is malicious. Insisting that he has the will and capacity to strike an Israel/Palestine deal while simultaneously intimating that he plans to fulfill his inflammatory campaign promise to move the U.S. Embassy to Jerusalem. Worse, he appoints David Friedman as ambassador, an ardent American supporter of settler extremists whose politics is to the right of Netanyahu on the Israeli spectrum. This bankruptcy lawyer turned diplomat has compared the liberal Zionists of J Street to the Nazi kapos (Jews who collaborated with Nazis in death camps). Here as elsewhere Trump’s errant behavior would prompt the darkest laughter if the blood of many innocents were not daily being spilled on the streets of Jerusalem, West Bank, and Gaza.

It seems likely that Trump, assuming against all reason and evidence that his presidency survives and settles down, will likely do what Netanyahu and his son in law tell him to do: leave Israel free to maintain, and as necessary, intensify its policies of oppression toward the Palestinian people as a whole that are cruelly subjugated beneath an overarching structure of apartheid. At the same time the U.S. Government will continue to give credence to the big lie that Israel is the only democracy in the Middle East. Israeli apartheid as an operative system of control, subjugates not only those Palestinians living under occupation but also extends its reach to refugees in neighboring countries, involuntary exiles around the world, and the discriminated minority living in Israel.

The main Trump assignment within the United States will likely be to lend full support to the Congressional and state-by-state pushback against the BDS campaign, slandering this nonviolent civil society movement of militant solidarity and human rights by castigating it as ‘the anti-Semitism of our time.’

On an international level Trump will be expected by Zionist forces to translate the UN-bashing of Nikki Haley into concrete reality by defunding any organ of the UN (e.g. Human Rights Council, UNESCO) that dares document and censure Israeli wrongdoing under international law. And regionally, Trump seems determined to champion the dangerous Saudi/Israel agenda of anti-Iran war mongering, a posture that threatens to convert the entire region into a war zone.

Trump’s clumsy touch was also evident during his much heralded May visit to Riyadh where he gave his blessings to the anti-Qatar, anti-Iran Gulf + Egypt coalitions headed by Saudi Arabia. The occasion offered the Saudis an opportunity to exert collective pressure on their tiny neighbor, insisting that Qatar curtain its sovereignty and endured a misguided hit for supposedly being the country most supportive of terrorism and extremism in the region. To lend American backing to such a hypocritical initiative is perverse and strange for several reasons obvious to almost anyone not totally oblivious to the rather blatant realities of the Middle East: Qatar is the site of the largest American military facility in the entire region, the Al Udeid Air Base, staffed by 11,000 U.S. military personnel, and serving as the counter-terrorist hub for regional military operations. Secondly, the obvious fact that Qatar’s slightly more open domestic political scene, including its sponsorship of Al Jazeera, was far closer to the supposed American political ideal than are the overtly anti-democratic governments ganging up against Qatar. And thirdly, as almost anyone following the rise of Islamic extremism knows, it is Saudi Arabia that has a long record of being the primary funding source, as well as providing much of the ideological inspiration and engaging in anti-democratic and sectarian interventions throughout the region. The Saudi government extends its baneful influence far afield by heavily subsidizing the madrassas in the Muslim countries of Asia, and doing its best to promote fundamentalist versions of Islam everywhere in the world.

Extreme as are these geopolitical missteps taken during Trump’s first few months in the White House, they are less calculated and more expressive of dysfunctional spontaneity than anything more malevolent, more bumbling than rumbling (with the notable exception of Iran). There is another more sinister civil society initiative underway that rests its claim to attention on a geopolitical fantasy that deserves notice and commentary. It is the brainchild of Daniel Pipes, the notorious founder of Campus Watch, an NGO doing its very best for many years to intimidate and, if possible, punish faculty members who are critical of Israel or appear friendly to Islam. Pipes is also the dominant figure in a strongly pro-Zionist, Islamophobic think tank in Washington misleadingly named the Middle East Forum (MEF). Much more an organ of hasbara musings on Israel/Palestine and promoter of hostility toward Islam than informed analysis and discussion, MEF is now fully behind an idea so absurd that it may gain political traction in today’s Washington. This MEF initiative is called Israel Victory Caucus in the U.S. Congress and Israeli Knesset.

In explaining the Victory Caucus Pipes at the opening of a recent hearing in the U.S. Congress to launch the project, now backed by 20 members of the House of Representatives, made an almost plausible introductory statement. Pipes told the assembled members of Congress that he had been for months racking his brain for what he called an “alternative to endless negotiations which nobody believes in.” Pipes is right to pronounce the Oslo diplomatic track a dead end with no future and a sorry past. His ‘Eureka Moment’ consisted of abandoning this failed diplomacy and replacing it by bringing Israel’s military superiority “to convince the Palestinian they have lost,” thereby awakening them to the true realities of the situation. In effect, this awareness of Israeli victory causing Palestinian defeat was the way to move forward, arguing that long wars can end only when one side wins, the other loses. Pipes personally made a parallel effort in Israel, including at the Knesset, being the lead performer in a conference in Tel Aviv dedicated to the ‘victory’ theme, and holding a highly publicized meeting with Netanyahu intending to promote the Victory Caucus. In effect, since the diplomatic track leads no where, and Israel possesses the capacity to increase Palestinian suffering at any stage, it should use this leverage to compel those representing Palestinian interests to face up to reality as Israel sees it. Part of the background is the self-serving insistence that the reason that diplomacy doesn’t work is because the Palestinians are unwilling to accept the permanent presence of a Jewish state in their midst, and until they do so, the war will go on. From this perspective, the diplomatic track could not get the Palestinians to yield in this manner, and so Israel should shift its efforts from persuasion to coercion, with the implicit false assumption that Israel was too nice in the past.

What Israel wants from the official representatives of the Palestinian people is a formal acknowledgement that their effort to prevent the establishment of a Jewish state in Palestine has failed, and that they should formally express their acceptance of this outcome, not only in international languages, but also in Arabic. Victory Caucus also expects the Palestinians to affirm officially a right of self-determination in Palestine that belongs to the Jewish people. Also, the Palestinians are advised to be ‘realistic,’ and drop their dreams of a right of return to be exercised by Palestinian refugees. [for explication of the Victory Caucus approach consult the website of Middle East Forum, especially the many articles and presentations by Daniel Pipes; also helpful is Efraim Inbar, “Victory Requires Patience,” July 19, 2017] Again, there is an implicit assumption that Israel has been realistic over the years despite ignoring the guidelines of international law relevant to ‘belligerent occupation,’ including prohibitions on collective punishment and population transfer/settlements.

Pipes is very clear that the implications of victory, what he terms the details, should be left to the Israelis to decide upon. With a turn of phrase that seems an extreme version of wishful thinking to make himself sound reasonable and less partisan, Pipes insists that once this central fact of an Israeli victory is accepted, it will “be more beneficial to the Palestinians” than the present road to nowhere. The fine print may be the most disturbing and consequential aspect of the Victory Caucus arising from its realization that whatever Zionists and their most ardent supporters know to be true is not what most Palestinians believe to be the case.

Thus, for the Pipes’ logic what needs to happen, is to make the Palestinians see this particular light, and given the MEF convenient (yet deeply misleading) view of Arab mentality, this awareness can only be brought about by raising the costs to the Palestinians of continuing their struggle. Efraim Inbar frames the present situation as follows: “The Palestinian reluctance to adopt realistic foreign policy goals and the Israeli hesitation to use its military superiority to exact a much higher cost from the Palestinians are the defining features of the Israeli-Palestinian conflict.” Although what would be realistic for the Palestinians is not specified, but from the context of the argument and overall Pipes’s outlook, it would be pretty much an acceptance of the entire Israeli agenda: the settlements, including their infrastructure of roads and the wall, retention of Galilee and Jordan Valley for security, and a unified Jerusalem under Israeli control that serves as its capital.

When Inbar premises his policy proposals on overcoming “Israeli hesitation to use its military superiority” to get the Palestinians to accept reality, one can only shudder at what this writer has in mind. Pipes assures his audience that whatever is done along these lines to convince the Palestinians should respect “legal, moral, and political limits” but by explicitly leaving it up to Israel to determine what this might mean, these limits lack all credibility, especially given Israel’s past behavior, which flagrantly and repeatedly ignores these limits in enacting policies that produced massive and acute suffering for the Palestinians over a period of decades. Against such a background I find these lines of MEF advocacy to be irresponsibly provocative in their formulation, and frightening if ever relied upon as the basis of action.

What is left out of this Pipes’ proposal seems far more significant than what is included. The justification for the Victory Caucus is based on a supposed posture of Palestinian rejectionism explains far less about the unfolding of the conflict over the course of the last hundred years than would referencing Zionist expansionism, combined with the salami tactics of always disguising more ambitious goals during the process of achieving their proximate objectives. In recent years, particularly, the Palestinian side has badly wanted a deal, signaling even their willingness to accept a bad deal, so as to end the occupation, and establish a state of their own. Any objective approach to this question of why the Oslo diplomacy reached a dead end would attribute the lion’s share of responsibility to the Israeli side with its practice of putting forward ever escalating demands that it knows in advance that the Palestinians must reject, not because they are unrealistic, but because Israel’s demands for ‘peace’ are the permanent subjugation of the Palestinian people.

Most disturbing of all is without doubt this image of Israeli hesitation to use the force at its disposal as if implying that Israel have been gentle occupiers and benign oppressors for these past 70 years since the UN proposed partition of Palestine. The evidence is overwhelming that Israel consistently relies on disproportionate excessive force, as well as collective punishment, in response any violent act of Palestinian resistance, and even to nonviolent Palestinian initiatives, for instance, the first intifada (1987), demonstrations against the unlawful wall, and the reaction to the recent restrictions on entry to Al Aqsa were met with violence. One of the most striking conclusions of the Goldstone Report on the Israeli attack on Gaza at the end of 2008 was its referencing of the Dahiya Doctrine, referring to the Israeli rationalization for destroying civilian neighborhoods in south Beirut assumed to be pro-Hezbollah as part of a strategy of disproportionate response to Hezbollah’s acts of violence in the course of the 2006 Lebanon War. Israeli military commanders gave two complementary explanations: the civilian population is part of the enemy infrastructure, thereby abolishing the distinction between civilians and military personnel; it is helpful for actual and potential enemies to perceive Israel as madly overreacting in response to even a minor provocation.

With more than a touch of irony, as of this writing, it is the Palestinians who are with greater credibility claiming ‘victory’ given the apparent resolution of the Al Aqsa crisis, which induced Israel to back down by agreeing to remove metal detectors and surveillance camera from two of the entrances to the Noble Sanctuary/Temple Mount esplanade leading to the mosque, and what is equally relevant, Israel appears for now to accept the continuing Wafq role as the only legitimate administrative authority in relation to this sacred Muslim religious site. Whether this is indeed more than a tactical retreat by Israel remains to be seen, and will be determined by how the recurrent battle for the governance of Al Aqsa proceeds in the future.

Similarly, whether the Victory Caucus is viewed in the future as a sinister display of Zionist arrogance or a step toward closure in the Israeli end game

in Palestine will depend, not on the positing of grandiose claims, but what happens in the future with respect to Palestinian resistance and the global solidarity movement. Israel’s president, Reuven Rivlin, recently warned Israelis that the BDS campaign poses “a strategic threat’ to Israel. Such a sentiment makes more than a little odd, and absurdly premature, for American and Israeli legislators to step forward to call upon Israel to up the ante by increasing their pressure on the Palestinians so that they are forced to admit in public what they now refuse to say even in private, what MEF wants us all to believe, that Israel has won, Palestine lost.

Richard Falk

Richard Falk is an international law and international relations scholar who taught at Princeton University for forty years. Since 2002 he has lived in Santa Barbara, California, and taught at the local campus of the University of California in Global and International Studies and since 2005 chaired the Board of the Nuclear Age Peace Foundation. He initiated this blog partly in celebration of his 80th birthday.